Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.
MEANS ASSESSMENT – WHERE WE ARE NOW
(this section is nicked, sorry reproduced, from Vicky Ling’s notes with her permission)
Following numerous reports from members concerning inappropriate means enquiries by the LAA, Carol Storer OBE wrote to Sean McNally, the LAA’s Director of Case Management.
Mr McNally’s prompt reply took members’ concerns seriously and acknowledged that some of the examples showed there were training needs. However, his view was that staff had made inappropriate enquiries in some; but not all, of our case examples. LAPG considers that in some important respects, the LAA is still interpreting the regulations incorrectly, and will be taking Counsel’s opinion in due course. This note provides information about areas where practitioners should no longer experience problems, issues to be aware of, and where further enquiries are likely.
Where the LAA should not be asking for more information
In the following examples, it was agreed that it was not appropriate to ask for more information and additional training/consistency checking measures have been put in place:
1. Where the client has a former partner. Where a relationship has come to an end, it is important to make this clear due to the LAA rules which allow them to take partners’ resources into account even if they do not live together.
2. Where clients are on an income passporting benefit, they should not be asked about their income or expenditure.
3. LAA staff should now understand that statements are only issued for Post Office accounts at three-monthly intervals and not ask for additional statements.
4. In possession cases, LAA staff should not be asking for information about the means of people living with the client if it is clear that they will be unable to contribute to legal costs, e.g. full time students, people who are unemployed and/or in receipt of means tested benefits. If such is the case, please give this information in the ‘extra information’ section of the CIV Means2 form.
5. In possession cases, LAA staff should not be asking for information about the means of people living with the client if it is clear that there is a conflict of interests, e.g. rent arrears have arisen because a non dependent has not contributed to the rent. If this is the case, it should be clearly explained on the application form.
6. If a client is being given a small fixed sum of money by a benefactor, that sum will be taken as income; but the benefactor’s means will not be taken into account – but see below regarding clients who are being ‘substantially maintained’ by a third party.
Issues to be aware of
1. If someone is street homeless and has a bank account, the LAA will still want evidence of the balance, even if the client is unable to supply three months bank statements.
2. If the DWP’s records show that a client is not in receipt of an income passporting benefit, and the application contains evidence that they are, the LAA should carry out a further check with the DWP.
3. The LAA will want evidence about the means of adults living in the property if it appears they could contribute to legal costs. If they are unable to contribute due to their own circumstances, the reason should be provided in the ‘extra information’ section of the CIV Means2 form.
4. If a member of the client’s family is supposed to contribute financially; but is not in fact doing so, do not include the figure in the client’s income. The LAA will only take money into account if it is paid.
5. Money paid by a family member in relation to household bills should be counted as the client’s income.
6. If a client’s partner/family provides support from abroad, but cannot produce evidence of their means due to forces outside their control such as UN sanctions, being in a warzone, foreign exchange regulations etc., full information should be provided so that the decision will be escalated to a senior member of staff.
Where further enquiries are likely
1. Where entries on a bank statement show movements to another bank account held by the client. The LAA will want statements from all accounts, held solely or jointly.
2. If a client is being substantially maintained by another person, e.g. where the third party is providing all the support an individual receives, even where this is on a subsistence basis, the LAA will generally use its powers under regulation 16(5) of the Civil Legal Aid (Financial Resources and Payment for Services Regulations 2013, to ask the benefactor to complete a Means1.
LAA staff should take into account the degree of affiliation with the person supporting the client and the closer the relationship, e.g. family member, the more likely it is that the LAA will ask for full information about the benefactor’s means. In our examples, where someone was providing board and lodging or where they were giving a client small amounts of money; but these appeared to be the client’s sole means of support, the LAA responded that it was generally appropriate to ask for a Means1.
3. If a client gives a figure for board and lodging, rather than rent, the LAA is likely to want to establish the element which is attributable to rent (which is an allowable expense) and food/utilities (which are not). This may include enquiries to the landlord.
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